. NMT05-T1172
Volume V · Page 1172
| the novel proposal that unless all suspects
are accused, none should be indicted or tried. This would require the Tribunal
to go far beyond its proper jurisdiction, and is, on the face of it,
impossible. The sole province of the Tribunal is to judge those who are brought
before it by the duly constituted prosecuting authorities who are entirely
independent of the Tribunals. The judicial power does not extend to the
institution or launching of criminal proceedings. Defense counsel further urged that there is a noticeable disparity between the sentences imposed in comparable cases by the several Military Tribunals. They urged that even with respect to sentences imposed in cases concluded months after the judgment in this case was entered. some sort of uniformity should be achieved. To do this would involve deferring sentences in all cases until the last one had been tried, then reshuffling all the defendants into rough categories and imposing sentences by some undisclosed use of the law of averages. This strange and unique procedure is obviously impossible. The burden of much of the defense briefs is that defense counsel disagree with the conclusions of the Tribunal drawn from the proof. As they did in their lengthy closing arguments, they repeat their concepts of the weight of the evidence and the credibility of the witnesses. Incriminating documents are met by the statement. "But the defendant denies this", or "the affidavit of witness X refutes this." Such a situation is, of course, typical of any judicial proceeding, but in the last analysis, it is the province of the Tribunal to determine the facts from conflicting proof. With the facts as so determined, it is to be expected that one side or the other will forever disagree. Some defense counsel, including counsel for Georg Loerner. have undertaken to analyze the concurring opinion filed by Judge Musmanno and to dispute the conclusions therein. It is to be observed that this concurring opinion forms no part of the ,judgment of the Tribunal. It was filed by Judge Musmanno for the purpose of recording for historical purposes a complete story of the concentration camps. It was not read into the record on 3 November 1947 at the time of the rendition of the judgment, and was not read or considered by the other judges prior to that date. The Tribunal. therefore, has not considered statements in defense briefs dealing with this concurring opinion. Some of the defense briefs have been presented with several affidavits attached, purporting to give factual support to the contentions in the briefs. These affidavits cannot be received as an extension of the proofs in the case. They have never been offered or received in evidence, nor has the prosecution had any oppor- […tunity] |
